Opinion
HHDCV176078556S
01-30-2018
Gennadly SAMSONENKO aka Gene Samson and Irene Samson v. MANCHESTER FAMILY DENTAL, LLC et al.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
This medical malpractice action comes before the court on the defendants’ motion to dismiss the plaintiff’s amended complaint on the familiar grounds that the attached opinion letter does not comply with General Statutes § 52-190a(a) because it is not from a " similar health care provider." The court agrees and grants the motion to dismiss.
FACTS
This action arises from the alleged failure to properly administer dental care to the plaintiff, Gennadly Samsonenko, by the defendants Manchester Family Dental, LLC (Manchester Family Dental), and Bradley J. Daar (Daar). The complaint alleges medical negligence by Daar and liability on the part of Manchester Family Dental based on a theory of respondeat superior for the negligence of its employees, including Daar. Irene Samson claims damages for loss of consortium as to both defendants. The plaintiff filed his original complaint on May 18, 2017, and attached an opinion letter from a purported similar health care provider. On July 19, 2017, the defendants filed their motion to dismiss with an accompanying memorandum of law. Subsequently, on July 20, 2017, the plaintiff filed an amended complaint, which is the operative complaint, with an updated opinion letter.
The plaintiff alleges the following facts in his amended complaint. Daar is a licensed Connecticut doctor of dental surgery who holds himself out to be " competent to practice as a dentist performing numerous orthodontic treatments." Specifically, Daar " advertised on his web-page and other public sources, that he was a member of the Academy of GP Orthodontics, which provides Orthodontic Continuing Dental Education for the General Practitioner, and had completed hundreds of hours of training in Orthodontics and more." The plaintiff was a patient at Manchester Family Dental on or about January 30, 2012, through April 14, 2016, to replace missing teeth and to correct his teeth grinding, along with remedying his incorrect bite. As a result of the treatment negligently administered by Daar, the plaintiff continues to experience pain and difficulty with closing his jaw, drinking, and eating.
On August 2, 2017, the defendants filed their motion to dismiss the amended complaint. The affidavit of Daar, which was attached to the motion, indicates that the dental services provided to Samsoenko were in his capacity as a general dentist as part of the spectrum of services undertaken by general dentists. The defendants assert that the author of the opinion letter is not a " similar health care provider" because (1) Daar is a general dentist and the opinion letter does not demonstrate that the author was actively involved in the practice or teaching of the same discipline or school of practice, i.e. general dentistry, within the five-year period preceding the incident, and thus is not a " similar health care provider" under § 52-184c(b); and (2) alternatively, if the court were to conclude that Daar is a specialist in orthodontics the opinion letter does not demonstrate that the author is board certified in orthodontics and thus is not a " similar health care provider" under § 52-184c(c).
The plaintiff objected to the defendants’ motion to dismiss on August 25, 2017. In the plaintiff’s view, the applicable definition of a " similar health care provider" is the non-specialist definition contained in General Statutes § 52-184c(b). However, the plaintiffs argue that because Daar was " a general dentist who was performing orthodontic treatment, a similar health care provider would be a general dentist who specializes in orthodontics." The matter was heard at short calendar on October 2, 2017.
STANDARD
" [A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
" [A] motion to dismiss is the proper procedural vehicle for challenging the sufficiency of an opinion letter and ... an opinion letter must demonstrate that its author meets the qualifications of a similar health care provider." Bell v. Hospital of Saint Raphael, 133 Conn.App. 548, 561, 36 A.3d 297 (2012). " [T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court." Id. 558-59. See Gonzalez v. Langdon, 161 Conn.App. 497, 504, 128 A.3d 562 (2015) (noting failure to attach to complaint legally sufficient opinion letter authored by similar health care provider mandates dismissal because the court lacks jurisdiction).
ANALYSIS
Section 52-190a(a) provides that a plaintiff bringing a negligence personal injury claim against a health care provider must make " a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant ... To show the existence of such good faith, the claimant or the claimant’s attorney ... shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence." In turn, § 52-184c establishes two categories of " similar health care providers." Where the defendant " is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty or does not hold himself out as a specialist," a similar health care provider is one who (1) is licensed by the appropriate regulatory agency and is (2) trained and experienced in the same discipline as a result of active involvement in the practice within the five-year period before the incident giving rise to the claim. § 52-184c(b). Where the defendant is a board certified specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a similar health care provider is one who (1) is trained and experienced in the same specialty and (2) is board certified in the same specialty. § 52-184c(c). Our Supreme Court has looked to the allegations of the plaintiff’s complaint for the determination of the appropriate definition of " similar health care provider." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 23, 12 A.3d 865 (2011); Wilkins v. Connecticut Childbirth & Women’s Center, 314 Conn. 709, 725, 104 A.3d 671 (2014).
The allegations of the present complaint cast Daar as a non-specialist general practitioner. Indeed, the plaintiff argues that the definitional parameters of § 52-184c(b) are applicable. The court agrees. There is no allegation that Daar is board certified as a specialist. Moreover, the plaintiff does not allege that orthodontics, and in particular the treatment alleged to have caused injury, the " installation, maintenance, and removal of ... braces," or the complexity of the procedure, is beyond the competency of a general dentist.
Amended Complaint, July 20, 2017, Entry # 103, counts one through four, ¶ 15.
The plaintiffs, however, argue in their objection that what they have actually alleged is that Daar " negligently performed orthodontic treatments on the plaintiff when he is not qualified to do so as a general dentist." The court has carefully reviewed the complaint and finds no such allegation that Daar performed a procedure for which he held insufficient education, training or experience. Neither is there an allegation that the applicable standard of care requires that the orthodontic treatment rendered by Daar be undertaken only by a " specialist."
Thus, the orthodontic training and experience which Daar is alleged to have claimed he possessed does not constitute training or experience in a medical specialty. Similarly, the allegation found in the complaint that " Daar held himself out as competent to practice as a dentist performing numerous orthodontic treatments," even when read in the most favorable light to sustaining jurisdiction, implies only proficiency in one of various areas of treatment within the ambit of general dentistry. The definitional parameters set forth in Section § 52-184c(b) for both defendant and similar health care providers are thus applicable.
Conversely, the author of the opinion letter is a specialist. It is true that he possesses similar licensure, that of a dentist, as Daar. See § 52-184c(b)(1). However, his statement of qualification does not demonstrate experience in general dentistry as a result of the active involvement in the field within the five-year period before the incident giving rise to the claim. § 52-184c(b)(1). The statement of qualifications in the opinion letter attached to the complaint includes the representation that he is " A Dental Specialist in the field of Orthodontics and Dentofacial Orthopedics." He represents that he has a doctor of dental surgery degree, has completed three additional years of specialty training in the field of Orthodontics and Dentofacial Orthopedics, has a master’s degree in orthodontics and dentofacial orthopedics and operates his own practice " as a dentist specializing in orthodontics." The author is clearly a specialist in the field of orthodontics and dentofacial orthopedics. The plaintiff argues that because " Daar was a general dentist performing orthodontic treatment, a similar health care provider would be a general dentist who specializes in orthodontics." As discussed above, there is no indication that the opinion letter’s author ever practiced in the field of general dentistry and he is thus not a " similar health care provider" as that term is defined in 52-184c(b).
This paradoxical result, an opinion author who may well be not only qualified to testify at trial but also more qualified than the defendant in the area of treatment, orthodontics, was anticipated by the plaintiff in Bennett, who observed that adhering to the plain language of the statute and the narrow definition of " similar health care providers" " yields the absurd result of potentially precluding highly qualified expert witnesses from participating in the prelitigation inquiry by authoring opinion letters." Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 17. As the court noted, however, " had the legislature desired to broaden the pool of physicians permitted to provide an opinion letter, it " could have allowed opinion letters to be authored by a ‘qualified health care provider’ rather than " similar health care providers." Id., 16.
CONCLUSION
Because the author of the opinion letter, a specialist by training and experience, is not, pursuant to § 52-184c(b), a " similar health care provider" in respect to Daar, a non-specialist general dentist, Samsonenko’s claims are dismissed. Because the liability of Manchester Family Dental is derivative in nature and must fail when the underlying malpractice claim is dismissed, Samson’s claims are also dismissed. Lucisano v. Bisson, 132 Conn.App. 459, 469, 34 A.3d 983 (2011).